Dynamism is a fundamental characteristic of the society as they are not static but living systems that adapt to internal and external pressures. The society is dynamic and constantly changing for as humans evolve so does their environment which in turn influences scientific and technological evolution. The evolution in these areas of science and technology lead to innovation which creates solutions to problems and makes valuable discoveries across various fields. With the success of inventions came Intellectual Theft which allowed other parties enjoy the rewards of an invention other than the original inventor by copying the invented product thus creating the need for Patents.

Patents play a major role in driving innovation and technological advancements. It gives inventors the exclusive right to prevent others from making, using, selling or importing a patented invention for a limited period in return for publicly disclosing how the invention works. It is a tool for protecting the rights of inventors, rewarding inventive effort, encouraging investment in research and development as well as enabling technology transfer through licensing.

The Concept of a Patent

Patents may be described as legal rights exclusively granted to an inventor who creates new and practical products to prevent such invention from being commercially exploited. In Nigeria, it is issued on application by the statutory inventor to the Registrar of Patents and Designs. If after careful examination of the application documents the Registrar accepts, a patent is granted, registered and the rights then subsist for the statutory duration.

The concept of Patents creates monopolization in which a third party can only exploit the patented invention with the authorization of the owner of the Patent (The Patentee). It is important to note that such “invention” could be a product, a process, composition or improvement that is novel and capable of industrial application. However, not all inventions are patentable. Such non-patentable inventions include:

1. Plant or animal varieties or biological processes for the production of plants or animals.
2. Publications or exploitations of inventions contrary to public order or morality.
3. Principles and discoveries of a scientific nature.

The conferment of a Patent brings about a situation of monopolizing innovation by granting exclusivity for a specific period and at the expiration of the duration of the patent, the invention is disclosed to the public to be freely exploited.

The Legal Framework for Patents in Nigeria

In Nigeria, the national laws governing Patents is the Patents and Designs Act (Cap P2 LFN 2004). The Act provides the framework for patent protection in Nigeria outlining the requirements for patentability, the application process, the rights and obligations of patent holders.

According to the World Intellectual Property Organization (WIPO), “the Patents and Designs Act is a crucial legislation that promotes innovation and technological advancement in Nigeria”.

Nigeria is a member of the World Trade Organization and a signatory to several international treaties related to Patent protection including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994) and the Paris Convention for the Protection of Industrial Property (1883). These treaties provide a legal framework for patent protection and cooperation among member states.

The Act states the process for patent application which involves several stages including filing, examination and grant. The application is made to the Registrar of Patents and Designs with detailed descriptions of the invention and supporting documents. It must be established by the applicant that such invention meets the requirements provided in Section 1 of the Act which states that such invention must be new and capable of industrial application. The second requirement is that it is a new improvement on a patented invention and capable of industrial application. The Patents and Designs Act also states the duration, compulsory licenses and modes of enforcement.

The Nigerian Intellectual Property Office (NIPO) was established to oversee the administration of intellectual property rights, including patents. Measures have been taken to improve patent application and examination. Despite these efforts, there are still gaps in the Patent laws of Nigeria.

Lacunae in the Nigerian Patent Legal Framework

Nigeria as a member of the World Trade Organization (WTO) is subject to the obligations of treaties like the TRIPS Agreement and the Paris Convention for the Protection of Industrial Property which states the minimum standards for Patent protection that must be put in place. Despite these treaties laying the foundation for patent laws, there are still gaps in the Nigerian patent laws.

1. One of the major challenges is the lack of effective enforcement mechanisms. Patent holders often face difficulties in enforcing their rights. This is because enforcement through the courts is time consuming and costly. Although remedies are provided for, Alternative Dispute Resolution Mechanisms are not utilized for Patent disputes. The Act also provides for compulsory licenses but the rules and procedures are vague and do not provide for certain cases with regard to contemporary issues and industry emergencies.
2. Another gap is the inconsistency of the provisions regarding the restrictions of compulsory licenses. The provision of the TRIPS Agreement regarding the restriction of compulsory licenses to the supply of domestic market has long been reconsidered in the Doha Declaration.
3. The old and outdated provisions of the Act is another gap in the legal structure. At the time the Patents and Designs Act was enacted, technology and software were not as developed as they are now. There is a need to review the Act and enact a new Patents and Designs Act which can cater to the current society.
4. Another gap in the legal framework is in the area of implementation. Due to the fact that the provisions of the Patents and Designs Act are old, its provisions cannot be effectively implemented because they were not made for the current society which has developed over time both scientifically and technologically.
5. Consequently, it has been argued that patents can be used as a tool for anti-competitive behavior by Patentee Companies and Start-ups to maintain market dominance and exclude the entry of new competitors. This raises the need for Nigeria’s Patent laws to be balanced out with competition policies.

Impacts of Patents on Contemporary Companies in Nigeria

The impact of Patents on domestic businesses and multinationals companies operating in Nigeria cannot be overemphasized. Some of these impacts include:

1. Protection of ideas and inventions: As organizations that provide products or services to consumers for money of which some are newly invented, Patents afford such companies the assurance to protect their intellectual ideas, inventions as well as their rewards.
2. Generation of incentives for research and development: Patents through innovative inventions help start-ups and businesses to attract investments as well as recoup their research and development capital by monopolizing the market. It also helps to monetize inventions through licensing.
3. Technology transfer and partnerships: Although, most technologies are developed in a particular country and patented, they are subsequently used in different countries across the world. Thus, it facilitates the transfer of technology. It also enables partnerships though joint ventures, licensing between foreign technology owners and Nigerian companies.

The Business Facilitation (Miscellaneous Provisions) Act and its Efforts to Reform the Nigerian Patent Laws

The Business Facilitation Act (BFA) 2023 was promulgated to simplify the process of doing business by reforming some of the laws governing some corporate areas of law. Some of the reforms it made to the Patents and Designs Act include:

1. It reformed the Patents and Designs Act by adding a new section, 13A, which expressly empowers the Minister of Trade and Tourism to the govern process for application, grant, use and withdrawal of compulsory licenses.
2. It further empowers the Minister of Trade and Tourism the authority to grant compulsory license before the standard time limits of 4 years from filing or 3 years from grant. These compulsory licenses can only be issued for patented products and processes that are very important for public health, the Nigerian economy, or national defense.
3. The BFA also empowered the Minister to streamline the regulatory processes involved in patent application.

Recommendations

1. The Patents & Designs Act needs to be reviewed and reformed to cater to modern technology like biotech, software-related inventions and AI.
2. The laws must be expressly stated with regard to exceptions and compulsory licensing rules.
3. Intellectual property enforcement needs to be improved and other alternative dispute resolution mechanisms needs to be encouraged.

Conclusion

Patents remain an important tool for protecting inventions and fostering commercialization in Nigeria. However, the lacuna in the laws need to be reviewed, reformed and enacted according to modern technology. A cogent Patent law depends on a legal and administrative regime that is timely, clear and well-resourced. Only when these changes are made can the impact be better.